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One in three Ontario criminal verdicts overturned

By Tracey TylerLegal Affairs Reporter

Mon., July 5, 2010

Richard Tremblay proved he wasn’t a typical neighbour when he parked his beat-up, spray-painted van along his property line during a dispute with the people next door, earning himself a criminal conviction for mischief.

When his case reached the Ontario Court of Appeal, Tremblay also set himself apart from the majority of people who contest their convictions.

He won his case.

A statistical analysis of five years’ worth of the court’s cases — the first time the numbers have been crunched — shows approximately 35 per cent of criminal appeals succeed.

For the public, the results — included in the court’s first annual report — may dispel some perceptions the criminal justice system is soft on crime.

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They may also surprise many in the legal community, where the court has the opposite reputation.

“Thirty-five per cent? I thought it would have been much lower than that,” said Keith Wright, a Toronto lawyer who frequently argues cases before the court at Osgoode Hall.

While only a minority of criminal appeals succeed, it is a sizeable minority.

“Thirty-five per cent means for every 20 people, seven are successful,” said Paul McNicholas, an associate professor at the University of Guelph’s department of mathematics and statistics. “That’s an awful lot . . . better than one-in-three.”

Most criminal appeals are brought by people convicted of crimes, but they also include Crown appeals of an acquittal or sentence imposed by a trial court.

Sentence appeals have become “notoriously unsuccessful” because of directions from the Supreme Court of Canada in recent years, telling appeal courts they should interfere with a trial judge’s sentencing discretion only if the sentence was obviously unfit, Wright said.

But even with those restrictions, criminal appellants enjoyed greater success last year than those appealing trial court decisions in family or civil cases.

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The appeal court set aside trial decisions in 34 per cent of family cases and 27 per cent of civil cases.

But it helps to have a lawyer. Inmates appealing their convictions or sentences in person, without legal assistance, won just 20 per cent of the time.

The court hears about 1,200 cases a year and, since few go on to the Supreme Court of Canada, it’s the last stop for most Ontarians seeking justice.

Ontario Chief Justice Warren Winkler said the report — a massive two-year undertaking — was part of a broader initiative to make the work of the court “more understandable to the public and more relevant.”

“It was always cloaked in this sort of veil of secrecy,” he told the Star Tuesday. “There was a mystery about it, even to lawyers.”

Winkler said the most surprising statistic was the number of people arguing motions before the court without lawyers.

“It’s a big problem,” he said, adding a lawyer from the Advocates’ Society has started coming to motions court on Wednesdays, on a pro bono basis, to help out.

The numbers have been increasing. Last year, 482 people had no lawyer when they brought motions — a request for directions or rulings from the court. Motions can involve anything from reopening a case to getting access to trial transcripts.

About 23 per cent of people in criminal appeals had no lawyers at the time they launched their appeal, while just over half of those bringing appeals in family law cases fell into that category and a quarter of those appealing civil court trial decisions were unrepresented.

When their cases got to court, they may have been assisted by lawyers who take turns volunteering as duty counsel under the Advocates’ Society program.

The court’s statistical analysis also shows dissenting opinions from its 22 judges are exceedingly rare. Last year, approximately 99 per cent of decisions were unanimous.

The results show that most groups seeking to intervene in appeals are allowed to do so. Last year, 17 requests were granted and four dismissed.

Over the past five years, there has also been a decline in the number of criminal appeals, which could be the result of legal aid restrictions. The court heard 466 criminal cases in 2009, versus 545 in 2004.

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